Gonsalves v. US, Civ. No. 91-0112 P-C.

• Decision Date: 21 January 1992
• Docket Number: Civ. No. 91-0112 P-C.
• Citation: 782 F. Supp. 164
• Parties: Gilbert T. GONSALVES, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Maine

782 F. Supp. 164

Gilbert T. GONSALVES, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 91-0112 P-C.

United States District Court, D. Maine.

January 21, 1992.

COPYRIGHT MATERIAL OMITTED

Gilbert T. Gonsalves, pro se.

David R. Collins, Asst. U.S. Atty., Portland, Me., David S. Newman, Washington, D.C., for defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

GENE CARTER, Chief Judge.

This case arises out of an internal revenue dispute between pro se Plaintiff Gilbert T. Gonsalves and Defendant Internal Revenue Service (hereinafter "IRS"). Plaintiff has initiated suit against the IRS.¹ On March 28, 1991, Plaintiff filed this action for monetary damages under sections 7422 and 7433 of the Code, alleging that Defendant violated 26 U.S.C. § 6331(d), as well as the Due Process Clause of the Fifth Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Plaintiff's Complaint (hereinafter "Complaint"), ¶¶ 1-2. Plaintiff asserts four actions constituting the alleged violations of his rights by the IRS: (i) denial of his "appeal rights" under the internal revenue laws (Complaint, ¶ 1); (ii) refusal to refund taxes alleged to have been erroneously and illegally assessed and collected relative to the years 1981 through 1985 (Complaint, ¶ 2); (iii) failure to give notice and demand relative to assessments against him prior to issuing liens and levies (Complaint, ¶ 3); and (iv) use of evasive and delaying tactics in preventing him from concluding his tax differences (Complaint, ¶ 4).²

The Court now has before it Defendant's Motion for Summary Judgment filed on October 10, 1991. The Court acts on the motion on the basis of the written submissions of the parties. For the reasons that follow, the Court will grant in part and deny in part the Motion for Summary Judgment.

I. SUMMARY JUDGMENT

A motion for summary judgment must be granted if:

The pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c). The Court of Appeals for the First Circuit has articulated the legal standard to be applied in deciding motions for summary judgment:

The movant must adumbrate `an absence of evidence to support the nonmoving party's case.' Celotex Corp. v. Catrett, 477 U.S. 317, 325 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). When that is accomplished, the burden shifts to the opponent to establish the existence of a fact issue which is both `material,' in that it might affect the outcome of the litigation, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976), and `genuine,' in that a reasonable jury could, on the basis of the pro-offered proof, return a verdict for the opponent. Anderson, 477 U.S. at 248 106 S.Ct. at 2510; Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir.1988). It is settled that the nonmovant may not rest upon mere allegations, but must adduce specific, provable facts demonstrating that there is a triable issue. `The evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial.' Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989). As the Supreme Court has said:

There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be entered.

Anderson, 477 U.S. at 249-59 106 S.Ct. at 2510-16.

Brennan v. Hendrigan, 888 F.2d 189, 191-92 (1st Cir.1989).

The Court now looks to the supporting papers on the motions and the citations to materials of evidentiary quality in support of the issues that the Court must consider as a basis for its action upon the motion.

II. FACTS

Plaintiff was an employee of the Panama Canal Commission (hereinafter "Commission") from 1979 to 1985. The IRS assessed against, and collected from, Plaintiff income taxes on his income earned as an employee of the Commission. Plaintiff asserts that his commission wages were not taxable and he filed claims for refunds for the years 1981-85.

After Plaintiff filed his 1981 federal income tax return,³ an assessment was made against him for income taxes relative to that year. The IRS levied on bank accounts of Plaintiff and, on March 3, 1988, seized $5,105.37 of Plaintiff's funds held in an account at First New Hampshire Bank to apply to Plaintiff's unpaid 1981 income tax liability.

After numerous correspondence between Plaintiff and the IRS, the IRS informed Plaintiff on January 22, 1990 that it could not allow his claims for refund for the time period in question (1981-85). The IRS indicated that its letters were Plaintiff's "legal notices that his claims were fully disallowed." See Plaintiff's Objection, Plaintiff Exhibits B & C.

III. DISCUSSION

A. Immunity

The doctrine of sovereign immunity bars constitutional claims against the United States for money damages except where it consents to be sued by statute. See United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980); United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); Burgos v. Milton, 709 F.2d 1, 2 (1st Cir.1983). "Limitations and conditions upon which the United States consents to be sued must be strictly observed and exceptions thereto are not to be implied." See Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957). In the absence of explicit statutory consent, the United States is immune from suit; the federal district court lacks jurisdiction in such circumstances; and the claim must be dismissed. See Testan, 424 U.S. at 399, 96 S.Ct. at 953; Gilbert v. Da Grossa, 756 F.2d 1455, 1458-59 (9th Cir. 1985).

Here, the United States has not waived its immunity from suit for damages arising from constitutional violations. It has not consented to be sued by statute and, therefore, a claim for damages for such violations may not be brought against the United States but can only be maintained against those federal officials who were directly responsible. See Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 2909, 57 L.Ed.2d 895 (1978); Bivens v. Six Unknown Named Agents, 403 U.S. 388, 410, 91 S.Ct. 1999, 2011, 29 L.Ed.2d 619 (1971) (Harlan, J., concurring). Here, no agents or officials of the United States are proper parties to this suit and, as noted by the First Circuit:

No agents of the federal government are parties to this suit and even if they were, their presence would not effect our jurisdiction over defendant agencies of the United States. It seems clear that the sovereign immunity of the United States is not waived simply because agents of the government may be personally liable for deprivation of constitutional interests.

American Association of Commodity Traders v. Department of Treasury, 598 F.2d 1233, 1235 (1st Cir.1979) (footnote omitted). Defendant is subject to the constitutional claims of Plaintiff only to the extent that they may be brought under 26 U.S.C. § 7433;⁴ they cannot be brought under the United States Constitution. The United States, therefore, has not waived sovereign immunity for constitutional violations.⁵ As a result, the sovereign immunity doctrine bars Plaintiff's claims against the United States for alleged constitutional violations under the Due Process Clause of the Fifth Amendment, see Complaint ¶¶ 1-4, and the Equal Protection Clause of the Fourteenth Amendment. See Complaint, ¶ 2.

The Federal Tort Claims Act (hereinafter "FTCA"), 28 U.S.C. ¶¶ 2671 et seq., constitutes a limited waiver of sovereign immunity for certain negligent or wrongful acts by government employees acting within the scope of their employment. See Hydrogen Technology Corp. v. United States, 831 F.2d 1155, 1160 (1st Cir.1987), cert. denied, 486 U.S. 1022, 108 S.Ct. 1995, 100 L.Ed.2d 227 (1988). With respect to any possible common law tort claims of Plaintiff against the United States, however, section 2680(c) of the FTCA prohibits any suit against the United States "arising in respect of the assessment or collection of any tax...." Courts have broadly construed the FTCA's exclusion regarding tax assessment or collection, dismissing claims for lack of subject matter jurisdiction on that basis. See, e.g., National Commodity and Barter Association, National Commodity Exchange v. Gibbs, 886 F.2d 1240, 1246 (10th Cir.1989) (assessment of penalties for promotion of abusive tax shelter); Capozzoli v. Tracey, 663 F.2d 654, 657-58 (5th Cir.1981) ("Congress intended to insulate the IRS from tort liability stemming from any of its revenue-raising activities," including the taking of photographs alleged to be tortious invasion of privacy);⁶American Association of Commodity Traders, 598 F.2d at 1235 (refusal to process taxpayer's application for tax-exempt status under the Code); Morris v. United States, 521 F.2d 872, 874 (9th Cir.1975) (unlawful seizure and levy of property fell within exempted group of tort claims arising out of tax collection efforts). This broad construction of tax "assessment or collection" under section 2680(c) seems to "reflect the government's strong interest in protecting the administration of its tax systems from the burden of constant litigation." Capozzoli, 663 F.2d at 657.

Here, Defendant's conduct regarding levy and seizure of $5,105.37 of Plaintiff's funds held in his bank account to apply to his unpaid 1981 income tax liability falls squarely within the...